Thoughts on recent Ninth Circuit and California appellate cases from Professor Shaun Martin at the University of San Diego School of Law.

Monday, April 01, 2013

U.S. v. Reyes-Ceja (9th Cir. - April 1, 2013)

You got me, Judge Kleinfeld. Well done.

I occasionally publish fake blog posts on this day as an April Fool's joke. But this year, Judge Kleinfeld beats me to the punch.

I'm especially proud that he was able to get Judges Paez and Milan Smith in on the joke. Bravo.

When I read this opinion, it seemed entirely persuasive to me. The analysis is erudite. Judge Kleinfeld knows his stuff. The opinion seemed spot on.

And then I went back and actually read the underlying statute.

At which point, I finally understood. I'd been had. Well played, Judge K.

The opinion starts out great. It rightly makes me entirely unsympathetic to the defendant, and highlights a real (and continuing) problem we constantly face here in the Ninth Circuit, as well as elsewhere. Gustavo Reyes-Ceja killed someone with a firearm. So we put him in prison and, once he got out, we deported him.

Then he snuck back in. And committed a lewd act on a child. So we caught him, put him in prison, and (again) deported him.

Then he snuck back in again. Stole some stuff. Caught and deported again.

Snuck back in again. Deported.

Snuck back in. Stole some more stuff. Put in prison again.

You can see where this is going, and where it's been thus far, right?

So now we decide we're going to prosecute him for being in the United States illegally after being deported. Makes total sense. Indeed, we perhaps should have done that long ago. So the federal authorities file the relevant charges. Which stem from being "found" in the United States.

Reyes-Ceja is undeniably guilty. Indeed, he's the poster child for why we want these charges. We can't just let people keep sneaking in, committing crimes, getting deported, and then coming back to commit more crimes. Time for some deterrence and some incapacitation.

Makes sense to me.

So Judge Kleinfeld's opinion goes on at length about the nature of the underlying crime -- being found in the United States -- and why Reyes-Ceja is guilty, why we describe the crime as being "found in" rather than "entering" the United States (statute of limitations purposes), and why it's legitimate to punish people for being "found" in the United States even when we "find" them there only after they're in prison, at which point it's not like they have a choice. You entered the country voluntarily, so you can't complain about being punished for that just because by the time we finally "found" you you'd already been locked up for something else.

Yep. Entirely right.

I even liked how Judge Kleinfeld ended the opinion. Here's the final paragraph:

"One reason why 8 U.S.C. § 1326 has given rise to so many cases is because it defines a crime in part by what the government does (find an alien who has reentered the United States without permission) instead of solely by what the criminal does. Criminal statutes ordinarily address the criminal’s conduct (“if a person does X, he shall be punished”), not the government’s conduct. In context, though, it is the alien’s act of reentering without permission, and not ICE’s act of discovering him, that constitutes the criminal conduct. ICE’s discovery of an alien merely completes his crime and starts the statute of limitations running. Section 1326’s phrasing allows the government to prosecute deported aliens who have surreptitiously reentered and evaded detection for more than five years, while at the same time preventing ICE from finding an alien and then waiting for more than five years to prosecute him. ICE ends the crime, but does not generate it. The alien generates the crime through his voluntary act of reentry after having been deported."

That's beautiful. Exactly right. Helps people understand things. Left me with a happy feeling about the case.

It was only when I went back and reread the underlying statute that I realized that the panel must have intended the opinion as an elaborate April Fool's Day joke.

Perhaps I should have realized that when I first read the opinion. It's not that Judge Kleinfeld didn't tell me all the facts I need to know up front. He did. That's what makes the trick so funny.

He told me at the outset that while the charged offense was about being found in the United States, the appeal was actually limited to a particular sentencing enhancement; namely, whether you get two points added to your guideline range for committing an offense while under a criminal sentence. But Reyes-Ceja had lots of crimes, and lots of sentences, and clearly is guilty and needs to be punished. So it makes sense that his sentenced gets enhanced, right? I'm on board, especially after Judge Kleinfeld waxes poetic about the nature of the offense, about how being "found" in the United States is still voluntary even when you're involuntarily in prison, etc. That makes sense to me.

Until I reread the relevant guideline. Here's what it says (U.S.S.G. § 4A1.1(d)):

"Add 2 points
if the defendant committed the instant offense while under any criminal justice sentence, including probation, parole, supervised release, imprisonment, work release, or escape status."

You see why 4A1.1(d) increases a sentence under those circumstances, right? Because someone who commits a crime while (for example) on parole or in prison is obviously a harder core criminal, and is more in need of/deserving of punishment, than someone who commits a crime while free.

But here's the rub. What Judge Kleinfeld (jokingly) holds is that this principle applies to someone who is "found" in the U.S. while in prison. In other words, they "committed" their crime while they were in prison, so the Sentencing Guidelines views them as harder core offenders and increases their sentence. That's the (alleged) intent of 4A1.1(d).

Now do you see why Judge Kleinfeld's April Fool's Day opinion brings a smile to my face?

Judge Kleinfeld surely knows that he's being facetious. How do I know? Because he ends his opinion -- the very last paragraph (indeed, the very last line) -- by saying (accurately) that "in context [] it is the alien’s act of reentering without permission, and not ICE’s act of discovering him, that constitutes the criminal conduct. . . . The alien generates the crime through his voluntary act of reentry after having been deported." He's exactly right. The alien's actual criminal offense is when he sneaks back into the United States. That's what we're punishing him for. Sneaking back in.

Did the alien do that -- what Judge Kleinfeld rightly calls "the [actual] criminal conduct" -- while he was in prison or on parole? No. Not at all. If he had, we'd rightly enhance his sentence under 4A1.1.

But Reyes-Ceja didn't do that. He wasn't on probation or parole when he snuck back in. The only reason the U.S. wants a two-level enhancement is because he was found in prison after he committed what Judge Kleinfeld correctly identifies as the relevant offense; i.e., sneaking back in.

So Judge Kleinfeld entirely understands the nature of the offense. But nonetheless slyly comes out the exact opposite way. He's essentially saying: "You committed an offense before you're in prison, so we're going to punish you as if you committed that offense while in prison."

A conclusion that should make the founders of this Special Day proud.

It'd be one thing if Judge Kleinfeld were to say: "I'm sure this was not the intent of those who created the Sentencing Guidelines [totally true], but due to the crazy wording of the underlying statute, which was designed for an entirely different reason [statute of limitations], we've got no choice but to ignore this intent and apply the literal words of the guideline and enhance the sentence. I know that's an absurd result, since it irrationally means that a guy who gets "found" (i.e., discovered) in the U.S. one day before he's sentenced to prison receives a shorter sentence than someone who's discovered one day after, even if they entered the U.S. (i.e., committed the actual crime) on the exact same day and in the exact same circumstances. But it's April Fool's Day. So absurdity is something we've got to live with, and I hereby embrace it."

That I could understand.

But Judge Kleinfeld does something different. He plays it straight up. He goes one way and then comes out with a holding that's exactly the opposite. Without a hint of irony.